what a disgraceful day. The Republicans last year didn't even give Garland, a far better candidate, a hearing. Gorsuch is a mere baby, not even 50 (I'm late 60s). More importantly, Gorsuch has the jurisprudence of a caveman. If left to him, administrative agencies would be unconstitutional and the entire federal regulatory scheme of the past 70 years would collapse. He's not a conservative, he's a reactionary. He's also an original-intenter -- a preposterous legal theory that Jill Lepore in a wonderful article on the theory compared to Dumbo's magic feather -- it's the pretext rabid-right wing judges use to overturn well settled precedent and rule according to their political beliefs. It's worth pointing out that this allegedly history-based jurisprudence was developed in the late 19th century, that Gorsuch is only the 3d proponent to get onto the court, and that the founders believed in an opposite kind of jurisprudence -- that the constitutional should be interpreted broadly to give the nation a chance to develop.

I'm a retired patent lawyer. Patents were established under the constitution. Under original intent, only patent applications dealing with fields of technology that the founders were familiar would be granted.Flogging was very likely a legal punishment back then. If so, under original intent, it would be legal now.

There is nothing wrong with original internet within reasonable means. There has to be some form of original intent preserved, or what would be the point in having a constitution to begin with? I get the point that you are making, but your examples are taking things to the extreme.

It seems that much of the regulatory agencies during the past 70 years are unconstitutional and given to us by FDR and the radical left. I remember something that states if something is not covered under the first nine amendments, those powers go to the states. Oh, that would be the tenth amendment. However, the leftists and progressives have been taking power from the states and building an out-of-control federal government since Teddy Roosevelt (a rino), Wilson and FDR. Now the republicans want in on the game so it's just a fight to see who runs and massive federal government.

Precedent seems like a way to skirt the constitution with asinine rulings (the 9th circus, yes circus, court of appeals is a great example of this).

Thanks to precedents, black americans should not be counted as citizens, the japanese should still be in internment camps, the schools should be segregated, we have forced sterilization of those with intellectual disabilities "for the protection and health of the state, the Kelo decision.....

EERY wrote:There is nothing wrong with original internet within reasonable means. There has to be some form of original intent preserved, or what would be the point in having a constitution to begin with? I get the point that you are making, but your examples are taking things to the extreme.

Everything is absurd when taken to the extreme.

The devil is in the details. I have no trouble with those that try to determine what the intent was behind a constitutional provision. The main problem with what Gorsuch and his ilk do is that they aren't really doing this. It is used mostly as a smokescreen to push a conservative agenda by dressing up their political preferences as some sort of holy writ handed down by the lawgivers.

It is the legal version of when people dress up their opinions in terms of something being "real."

Precedent seems like a way to skirt the constitution with asinine rulings (the 9th circus, yes circus, court of appeals is a great example of this).

Respect for precedent is what makes our system of government stable. Sure, there are unfortunate precedents, but no system is perfect, and precedents can be overturned when they are later determined to be bad.

Toss out the idea that precedents are to be strongly respected and justice truly becomes the whim of the judge. It is the lifeblood of the legal system, and without it people would not be able to predict with any reasonable certainty the legality of their conduct. So much of what we think of as the law is really just our being reasonably certain that courts will consistently interpret statutes/constitutional provisions.

For example, a police officer would not be certain whether he needs a warrant or whether a warrant exception applies, or for that matter whether there is an exception to a warrant requirement as it would totally depend on the present opinion of whatever judge gets the case.

EERY wrote:There is nothing wrong with original internet within reasonable means. There has to be some form of original intent preserved, or what would be the point in having a constitution to begin with? I get the point that you are making, but your examples are taking things to the extreme.

Everything is absurd when taken to the extreme.

The devil is in the details. I have no trouble with those that try to determine what the intent was behind a constitutional provision. The main problem with what Gorsuch and his ilk do is that they aren't really doing this. It is used mostly as a smokescreen to push a conservative agenda by dressing up their political preferences as some sort of holy writ handed down by the lawgivers.

It is the legal version of when people dress up their opinions in terms of something being "real."

EERY wrote:There is nothing wrong with original internet within reasonable means. There has to be some form of original intent preserved, or what would be the point in having a constitution to begin with? I get the point that you are making, but your examples are taking things to the extreme.

Everything is absurd when taken to the extreme.

The devil is in the details. I have no trouble with those that try to determine what the intent was behind a constitutional provision. The main problem with what Gorsuch and his ilk do is that they aren't really doing this. It is used mostly as a smokescreen to push a conservative agenda by dressing up their political preferences as some sort of holy writ handed down by the lawgivers.

It is the legal version of when people dress up their opinions in terms of something being "real."

EERY wrote:There is nothing wrong with original internet within reasonable means. There has to be some form of original intent preserved, or what would be the point in having a constitution to begin with? I get the point that you are making, but your examples are taking things to the extreme.

Everything is absurd when taken to the extreme.

The devil is in the details. I have no trouble with those that try to determine what the intent was behind a constitutional provision. The main problem with what Gorsuch and his ilk do is that they aren't really doing this. It is used mostly as a smokescreen to push a conservative agenda by dressing up their political preferences as some sort of holy writ handed down by the lawgivers.

It is the legal version of when people dress up their opinions in terms of something being "real."

"Patent lawyers aren't real lawyers because they don't have to do jury trials"

or

"Speed chess isn't real chess because you don't have time to look deeply into a position"

or

"Wheeling isn't a real West Virginia city because it doesn't have a Tudor's Biscuit world"

and on and on... this is basically what is going on in a legal sense.

or

"The Constitution is no longer the Constitution because a number of judges decided to set new precedents according to their political whims.

Yes, that is another example of foolishness. People that decide that something that they don't agree with is a political whim and that they do agree with is the legitimate interpretation.

Constitutional decisions are always going to have political subtext. Some are more blatantly political than others, but those that make that determination based on whether they share the political leanings of the decision are guilty of the very conduct they find objectionable. They are viewing jurisprudence through the lens of their own political prejudice.

EERY wrote:There is nothing wrong with original internet within reasonable means. There has to be some form of original intent preserved, or what would be the point in having a constitution to begin with? I get the point that you are making, but your examples are taking things to the extreme.

My examples were extreme to make the point that original intent (NOT "internet", although that would be an interesting way to interpret the Constitution), while sounding like a moderate and even desirable method of interpretation, is actually extreme. An article about Justice Breyer discussed his book on constitutional interpretation. He looks at six factors in making a determination -- I'll write down as many as I can remember --i. the language and structure of the provisionii. what it meant to the founders -- he calls it the historyiii. how the phrase is used elsewhere in the law -- he calls it traditioniv. precedentv. the purpose or intent of the provision, as best as can be gatheredvi. the effect or results.

The Original Intent folks only look at i. and ii. To them, precedent can be overruled by the founders' views. v. and vi. are definitely not used. That's too likely to lead to justices trying to implement their political philosophies. The result, however, is a theory of constitutional interpretation that disallows examining important considerations in making a decision.

In contrast, v. and vi. are important to Breyer. The purpose of law is to help form a just society. If a judge can't look at v. and vi. -- if a judge says as Scalia -- well, this law makes no sense, but that's not my problem, that's the way it's written, it's up to Congress to fix it --- then in Breyer's view society is worse off because it's stuck with a poor law.

Take the death penalty as an example. The original intent people have a simple analysis. The death penalty was used at the time of the adoption of the constitution, so it was NOT "cruel and unusual punishment" to the founders and so it is OK. That was the point of my example of flogging, that the analysis would be simple. To Breyer, an anti-death penalty advocate and to many others, the analysis is far more complex -- i. what purpose does it serve --i.e., deterrence, retribution, finality to the families of the victims. How effective is it at these purposes? ii. how prevalent is it -- in the US and elsewhere? iii. How painful is it in its present administration? iv. How fairly is it administered -- for example, do certain subgroups unfairly get this penalty far more often? How much is it dependent upon the judge or the prosecutor?

I happen to think that these are important issues in deciding whether the death penalty is constitutional, and that a theory of constitutional interpretation that doesn't think they should be considered is fatally flawed.

EERY wrote:There is nothing wrong with original internet within reasonable means. There has to be some form of original intent preserved, or what would be the point in having a constitution to begin with? I get the point that you are making, but your examples are taking things to the extreme.

Everything is absurd when taken to the extreme.

The devil is in the details. I have no trouble with those that try to determine what the intent was behind a constitutional provision. The main problem with what Gorsuch and his ilk do is that they aren't really doing this. It is used mostly as a smokescreen to push a conservative agenda by dressing up their political preferences as some sort of holy writ handed down by the lawgivers.

It is the legal version of when people dress up their opinions in terms of something being "real."

"Patent lawyers aren't real lawyers because they don't have to do jury trials"

or

"Speed chess isn't real chess because you don't have time to look deeply into a position"

or

"Wheeling isn't a real West Virginia city because it doesn't have a Tudor's Biscuit world"

and on and on... this is basically what is going on in a legal sense.

or

"The Constitution is no longer the Constitution because a number of judges decided to set new precedents according to their political whims.

Yes, that is another example of foolishness. People that decide that something that they don't agree with is a political whim and that they do agree with is the legitimate interpretation.

Constitutional decisions are always going to have political subtext. Some are more blatantly political than others, but those that make that determination based on whether they share the political leanings of the decision are guilty of the very conduct they find objectionable. They are viewing jurisprudence through the lens of their own political prejudice.